The unknown Supreme Court decision that changed everything for gays

February 5

Have you ever heard of ONE v. Olesen? I bet not. I certainly hadn’t, until a few weeks ago. Yet this case, whose inception marks its 60th anniversary in 2014, is arguably the seminal gay rights case in America — the one that extended First Amendment protection to gay-related speech.

I want to take a few paragraphs on it, first because it’s interesting, second because it’s such a good illustration of the point I made in yesterday’s blog post — and in the new afterword to (drumroll, please) the newly expanded edition of my book Kindly Inquisitors: The New Attacks on Free Thought. Gay people and other minorities are better off with legal and social protections for hate speech than with protections from it. The reason is that rebutting vile ideas is much more effective and politically reliable than suppressing them — a point that goes back at least to John Stuart Mill, but grows increasingly relevant as restrictions on speech deemed hateful or discriminatory become the norm in countries around the world (and on U.S. college campuses).

My book uses the example of Frank Kameny, the great gay-rights advocate who used his voice and pen to remarkable effect against supremely difficult odds. ONE v. Olesen opened the door to Kameny’s efforts, and so much else.

ONE was the country’s first openly gay magazine of ideas. It debuted in 1953 with serious articles on subjects like “homosexual marriage.” (In 1953!) It did not publish explicitly sexual content or anything that approached the boundaries of pornography. Nonetheless, it soon came under the scrutiny of the U.S. Post Office (as it was then called), which first held up an issue in 1953 and then banned the October 1954 issue from the mail.

In those days, a Post Office ban amounted to totally shutting down the publication’s distribution. The authorities cited a short story called “Sappho Remembered,” but, as First Amendment historians will not be very surprised to hear, the banned issue’s cover article was a critique of, you guessed it, the government’s censorship. The cover announced ” ‘You Can’t Print It!’ ” and the article walked through the many restrictions imposed on the magazine. The government censored the article objecting to government censorship. Classic. (Box Turtle Bulletin has a good account, with more interesting details than I have space for.)

What happened next was that ONE, led by its counsel, a young lawyer named Eric Julber (who happened to be the unnamed author of “‘You Can’t Print It!’ “, and who is still alive and living in California), filed suit. Federal district and appellate courts delivered defeats in stinging terms, leaving no doubt that the government’s censorship was message-specific. The district court’s decision held, “The suggestion advanced that homosexuals should be recognized as a segment of our people and be accorded special privilege as a class is rejected.” Upholding, the appeals court cited that fact that, in “Sappho Remembered,” “the young girl gives up her chance for a normal married life to live with the lesbian. This article is nothing more than cheap pornography calculated to promote lesbianism.”

I have a lot of difficulty explaining to anyone under 40 what life was like two generations ago for gay Americans. As of 1954, homosexuals not only lived in constant fear of being fired, shamed, and beaten or killed; we were also prevented by our government from making our case. To practice same-sex love was a crime; but even to praise it was “cheap pornography.” Something else I often find called on to emphasize to young people, at a time when college speech codes are usually justified as protecting minority rights, is that turnabout is not fair play. The problem is not that the bad guys were in charge of the speech rules in 1954, whereas the good guys are in charge now. The problem is that majorities, politicians and bureaucrats are very unreliable judges of minorities’ interests.

It was a surprise when the Supreme Court granted certiorari in the ONE case, the first dealing with homosexuality. The even bigger surprise was when, in January of 1958, without even hearing oral arguments, the Court issued a one-sentence per curiam ruling reversing the lower courts.

And that was it. No explanation, no fuss. But that was the day anti-gay censorship died in America. That very same month, as it happened, a U.S. Army Map Service astronomer was barred from government employment because he was homosexual — an injustice that he promptly, persistently, and, eventually, successfully challenged. His name, of course, was Frank Kameny.

In the past two months, two federal courts, one in Utah, the other in Oklahoma, have declared that state bans on same-sex marriage violate the Constitution’s promise of equal protection and due process. A lot of people think it’s only a matter of time, perhaps not much time, before the Supreme Court agrees. History will show, however, that gay marriage, and gay legal equality generally, owe their success not primarily to the 14th Amendment but to the First. We have Frank Kameny, ONE magazine, Eric Julber, the Supreme Court, and, in a roundabout way, the U.S. Postal Service to thank.

I’m sad that the ONE case has mostly disappeared from legal and civil-rights history. And glad that the Mattachine Society of Washington (originally founded by Kameny in 1961, now reconstituted with the mission of researching and memorializing gay history) is exhuming the case and trying to bring to light the government documents that lie behind it. (Hat tip to the society’s Charles Francis for bringing the case to my attention.)

In 2009, Kameny received a formal apology from the U.S. government for his firing, along with a commendation from the agency that had fired him. But, to my knowledge, the postal service has never atoned for its censorship of ONE. What it should do is obvious: issue a Frank Kameny commemorative stamp.

Everyone, let’s get those postcards and letters in the mail. Here’s the address:

Citizens’ Stamp Advisory Committee
c/o Stamp Development
U.S. Postal Service
475 L’Enfant Plaza SW, Room 3300
Washington, DC 20260-3501

* * *

Jonathan Rauch, a senior fellow at the Brookings Institution, is the author of Kindly Inquisitors: The New Attacks on Free Thought.

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